Religious Challenges to Anti-Discrimination Law: The Mobilization of the "Minority Label".

AuthorBriere-Godbout, Lea

Introduction I. The Conditions of Possibility of the Discourse of the "Minority Label" A. A Changing Socio-Historical Context 1. The Advances in LGBTQ2+ Rights 2. The Shift in Demographics 3. The Normalization of Reverse Discrimination Claims B. A Fertile Legal Landscape 1. The Courts' Conceptions of Religion and Freedom of Religion 2. The Doctrine of Complicity 3. The Importance of Pluralism and Tolerance II. The Operation of the "Minority Label" A. The Cases Under Analysis: Masterpiece Cakeshop AETWU 1. Masterpiece Cakeshop 2. TWU B. Framing Through Language C. Invoking Moral Symmetry 1. How Moral Symmetry Is Invoked in Masterpiece Cakeshop 2. How Moral Symmetry Is Invoked in TWU D. Reclaiming Respectability 1. How Respectability Is Reclaimed in Masterpiece Cakeshop 2. How Respectability Is Reclaimed in TWU Conclusion Introduction

In the American state of Colorado, a Christian baker refuses to create a cake for the celebration of a same-sex union. (1) Meanwhile, in the Canadian province of British Columbia, a Christian evangelical university imposes a code of conduct prohibiting same-sex sexual intimacy, leading the law societies of British Columbia, Ontario, and Nova Scotia to refuse to accredit its proposed law school. The three law societies justify their refusal by pointing to the discriminatory nature of the code. (2) For some, these two high-profile cases, decided by the highest American and Canadian courts in 2018, simply embody the "irresolvable" tension between liberty and equality confronting liberal democracies. While they are indeed intelligible through this lens, we submit in this article that the complexity of these two cases extends far beyond it.

Indeed, these cases are part of a larger legal trend in which religious actors--here, a "devout Christian" (3) and an evangelical institution--argue that the equality rights of others conflict with their own religious freedom. For them, complying with modern LGBTQ2+ (4) anti-discrimination protections would compel them to act in ways that contravene their beliefs. (5) Exemptions from anti-discrimination laws are thus sought by such believers in areas such as housing, education, employment, health care, adoption, and marriage-related provision of goods and services. Such cases, particularly in the United States, are litigated by highly organized and long-standing opponents to LGBTQ2+ rights, such as the Alliance Defending Freedom. (6) The point of interest of this legal trend is that, in claiming minority status for themselves and arguing that they have become a disadvantaged group in need of protection, religious actors opposing LGBTQ2+ rights are upending equality rights jurisprudence in the United States and Canada in a discursive process we term the "minority label." (7)

In this new paradigm, (8) religious believers refusing to comply with LGBTQ2+ anti-discrimination protections are no longer members of an oppressive majority seeking to impose traditional morality norms upon others. Rather, they depict themselves as lone dissenters who have lost the culture war on morality, (9) and who simply seek to protect "what is left" of their religious freedom. This is a value which, they argue, "has been relegated to a narrow, private sphere [and] which must be 'closeted' from public display." (10) In other words, these religious believers are recast as a minority requiring protection from "liberal orthodoxy," where equality rights constantly trump religious freedom. Hence, while their beliefs have not changed, conservative religious groups invoking the minority label contend they no longer speak as a majority: they rather speak as a new minority seeking exemptions from anti-discrimination laws to be able to protect their freedom of religion. (11)

The use of the minority label by these religious groups can be seen as an attempt to achieve what Reva Siegel calls "preservation through transformation." (12) This expression designates a dynamic through which actors resist contemporary discarding of conservative legal rules by trading arguments that have lost their mainstream appeal for others that better echo modern sensibilities. Their hope is to have these former legal rules reached though an alternative path that is more credible, which would relegitimize their unchanged policy preferences. (13) The use of the minority label to oppose LGBTQ2+ rights follows this logic: conservative religious believers have set aside a discourse focused on the preservation of traditional mores in favour of arguing that opposition to queer unions is a respectable, minoritarian religious belief warranting protection in the name of the right to religious freedom and equality.

This discourse differs from prior legal claims to minority status in the context of religious freedom in at least two important and interrelated ways. First, claims for protection on the basis of minority status have spread from discrete and insular communities often holding uncommon beliefs to claimants whose beliefs have long held a mainstream legal and social status and which continue to be shared by many. (14) This makes the mobilization of the minority label appear counterintuitive--as Melissa Murray points out, these claimants are not the traditional "imagined subjects" of anti-discrimination protections. (15) Second, the concept of "minority" is now deployed to contest anti-discrimination law norms by framing disputes as consisting of conflicting claims between the rights of two minorities equally in need of protection. Subjects and detractors of antidiscrimination protections are thus placed on par with one another.

This novel argumentative strategy is at the heart of the two aforementioned recent LGBTQ2+ rights-related decisions: Masterpiece Cakeshop v.

Colorado Civil Rights Commission (16) (Masterpiece Cakeshop), from the US Supreme Court, and Law Society of British Columbia v. Trinity Western University (17) and its sister case Trinity Western University v. Law Society of Upper Canada (18) (hereinafter referred to together as "TWU'), from the Supreme Court of Canada. The efforts of members of conservative Christian groups to claim minority status to justify their non-compliance with anti-discrimination laws in these cases inform us of the persuasive potential of the minority label. It also highlights what is at stake in accepting or rejecting the believers' non-compliance requests.

This article thus seeks to shine a light on the minority label and to dissect its persuasive mechanics by studying the judicial narratives crafted by parties, courts, and media around these two decisions. In our discussion, we retrace how religious believers opposing LBGTQ2+ anti-discrimination protections innovate by depicting themselves as a new minority, claiming a vulnerability usually reserved for traditional subjects of discrimination. We lay out the argumentative strategies supporting this discursive shift, converging toward one main goal: to anchor their religious claims on the ethical terrain occupied by discriminated individuals. We examine the common features in the rise of this discourse in the American and Canadian settings and how the two supreme courts react differently to the minority label contention.

The article proceeds in two parts. Part I presents the conditions of possibility of this discourse by listing the various elements accounting for the development of the minority label rhetoric among religious opponents to LGBTQ2+ rights. In Part II, we examine how the minority label operates as a rhetorical process in the discourse of parties, courts, and media. Three main argumentative strategies will be discussed: language framing, moral symmetry arguments, and respectability claims. For each strategy, we compare the reasons of the American and Canadian supreme court justices who adopted them in order to better understand how the minority label is received in each specific national context. We conclude by offering brief thoughts on the risks that the rise of such a discourse carry in the long term for LGBTQ2+ rights.

  1. The Conditions of Possibility of the Discourse of the "Minority Label"

    Various circumstances and factors contribute to the emergence and development of a discourse in which religious opponents to LGBTQ2+ 16 17 18 rights can mobilize the minority label to demand exemptions from antidiscrimination protections. While exploring these circumstances and factors in detail goes beyond the purpose of this article, we wish to highlight their existence in order to lay the basis of an explanation of how this discourse became possible. Its emergence is grounded in a combination of sociohistorical factors and doctrinal elements extracted from the legal understanding of religious freedom. Together, these preconditions opened a space for the minority label discourse to develop. The main elements of this "perfect storm" are outlined below.

    1. A Changing Socio-Histoiical Context

      Such a use of the minority label by religious groups is uniquely modern in that it owes its emergence to at least three main socio-historical phenomena: advances in LGBTQ2+ rights, a shift in demographics, and the normalization of reverse discrimination claims.

      1. The Advances in LGBTQ2+ Rights

        The new discourse studied here is a direct response to recent LGBTQ2+ rights mobilization and victories. Simply put, LGBTQ2+ discrimination first needed to be largely prohibited in the private sphere for opponents to be able to claim that such prohibitions interfered with their right to live according to their private religious beliefs. Indeed, when the debate pertained mostly to the public sphere, it was impossible for opponents of same-sex unions to portray themselves as a "targeted" minority, as nothing was yet being directly asked of them as individuals. (19) Hence, as the LGBTQ2+ rights movement progressed from public sphere victories (outlawing overt hostility and unequal treatment from state laws) (20) to secular...

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